Are We Punishing Diseases or Punishing People? An Interview With Trevor Hoppe

The movement to end laws that criminalize people living with HIV for exposure or transmission has gained momentum in the U.S. in recent years. However, HIV is by no means the first disease to be used to target marginalized people who happen to be living with it. TheBody.com sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology with the University at Albany, State University of New York (SUNY), to discuss his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).

Trevor Hoppe: The big question of the book is: Should we use the criminal law to address infectious disease? That central question drives a lot of the book. It's to consider whether punishment is really the right response, or the appropriate response in a public health matter like HIV.

The conclusion of the book is to argue, no: Punishment is not the appropriate response, and there are other institutions better served to handle medical problems like HIV.

KF: One of the things that you demonstrate in Punishing Disease is that HIV was by no means the first infectious disease to be criminalized. If you could describe for our readers the connection between the history of disease criminalization in the U.S. and what we now see with HIV, specifically.

TH: The book opens with a history of infectious disease control, and that really requires going back to medieval Europe and the plague and quarantine policies. I'm interested in that moment when coercion in public health, forcing people to do something against their will, like getting vaccinated -- or, more extremely, being quarantined -- those moments when those coercive programs, the line between coercion and punishment gets blurred. That's what I call punitive disease control.

For example, I look at cases such as, in the 1940s, Seattle had a tuberculosis ward that was set up to quarantine, to isolate, tuberculosis patients who were considered highly noncompliant. That sounds like a reasonable notion, given that tuberculosis is so highly infectious and contagious when you have active TB. But what actually happened in practice was that they just rounded up poor alcoholics from one neighborhood and locked them up without due process in this ward, the tuberculosis ward.

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It's moments like that when well-intentioned disease control programs go astray and start to single out marginalized communities and especially burden them with coercive programs. That's what I believe -- that the line between coercion and punishment gets blurred -- and I think that's a product of the fact that the people implementing these programs are actual people who have biases and prejudice and are informed by stigma.

That was true for HIV, but it was also true for TB and also true for influenza outbreaks. So, we've seen those moments throughout human history.

I will say that the extent to which HIV is criminalized under the law is new, in the sense that we haven't had a disease that had been so pervasively punished under the criminal law. But there have certainly been moments in time when it's hard to distinguish between a well-intentioned public health program and state-sanctioned punishments.

KF: You talk in the book about the relationship between AIDS in America -- the time into which we began to recognize HIV as an infectious disease -- and the war on drugs. Those are the two that I also talk about in my own work and speeches, that there is a direct correlation between the timing of both of these phenomena, right?

TH: Americans love to punish. I think that's really the consistent theme when you look at the criminal justice system, that when we see a social problem, our first reaction in so many cases is to lock people up and throw away the key. We see that as the most obvious and legitimate response.

We saw that with the war on drugs. Crack cocaine was singled out, particularly because it was associated with poor, urban, African-American communities that were highly stigmatized. And so, it was a political opportunity for lawmakers to capitalize on the public fear of black people in the U.S. and to market themselves to their constituents as being tough on crime by passing these very harsh, mandatory-minimum, and other kinds of policies, that disproportionately impacted black Americans.

I think we see the same thing happening with HIV. HIV emerges in the 1980s, right, in the belly of the beast, in terms of the birth of mass incarceration and the war on drugs. The lawmakers are already primed to punish. They already have -- you know, punishment is already at the top of their minds when HIV emerges. And so, I think we have to remember that when we think about why HIV gets criminalized in such a specific way that is unparalleled in modern American history. I think it was caught up in this wider net of punishment that Americans in the beginning of the 1980s, especially, became really addicted to.

That's how I see the connection. HIV is one example of a much bigger pattern of stigmatizing and punishing communities that Americans are afraid of and don't want to think too deeply about.

Credit: University of California Press

KF: One of the things you also talk about in Punishing Disease is that we're not talking just about criminal law. That is certainly one piece. But you also point us to some ways in which a kind of punitive response to HIV surfaces through the culture and other institutions, whether public health or other institutions, that are supposed to be responsive to the disease. If you could talk about some examples that you see of the kind of punitive disease control response happening, outside the courts and prisons and jails.

TH: Certainly. The first half of the book is really about the civil law, not the criminal law. It's looking at quarantine programs throughout history to see their application and understand them. There are lots of examples where quarantine starts to resemble punishment of marginalized communities.

For example, in World War II, tens of thousands of sex workers were arrested, and they were placed in civilian conservation camps (which effectively are concentration camps). This is a history that is not well documented. But what we know is that in many cases they were arrested for prostitution. They were sent to these conservation, quote-unquote, camps. And there was no appeal. There was no due process. There was no way that they could object to their detention because it was done allegedly on a public health basis, rather than a criminal law basis.

I'm interested, as a sociologist, in those moments when the civil law can become more intrusive and more extreme in its forms of detention, when it's driven -- especially by bias and prejudice -- against communities we are afraid to deal with.

We see that in World War II with sex workers, and we see that with HIV today in my interviews with health officials in Michigan. I think that when I went into this project, I really expected public health officials to describe a pretty compassionate response. I think that's how we imagine public health, as being the more benevolent institution. And there are definitely great people in public health, many people in public health who are living with HIV.

But what I found in Michigan, in these small towns, [was that] the local health officials who are tasked with responding and controlling clients that are HIV positive and that they believe are a potential health threat, really use a kind of policing strategy rather than a public health strategy. They devised all these strategies essentially to catch people and to hold them legally accountable for their actions. Oftentimes, they seemed intent on finding ways to punish their clients rather than to help them.

I think, again, these are moments when the line between, for example, a public health official and a police officer becomes really blurry. In Michigan, this didn't happen often. But in one case, for example, the local health department sent a memo to the prosecutor's office, telling him: "This is a client we have. We believe that he is spreading HIV. Here's where he hangs out. You should set up a sting operation to try to catch him."

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